u.s. customs and border protection. customs and border protection ... vol. 44, no. 38, september 15,...

U.S. Customs and Border Protection◆

DEPARTMENT OF THE TREASURY

19 CFR PARTS 12 AND 163

CBP DEC. 10–27

USCBP 2008–0052

RIN 1515-AD62

ENTRY REQUIREMENTS FOR CERTAIN SOFTWOODLUMBER PRODUCTS EXPORTED FROM ANY COUNTRY

INTO THE UNITED STATES

AGENCY: U.S. Customs and Border Protection, Department ofHomeland Security; Department of the Treasury.

ACTION: Final rule.

SUMMARY: This document adopts as a final rule the interimamendments to title 19 of the Code of Federal Regulations (19 CFR)that prescribe special entry and documentation requirements appli-cable to certain softwood lumber and softwood lumber products ex-ported from any country into the United States. This final ruleimplements Title VIII (“Softwood Lumber Act of 2008”) of the TariffAct of 1930, as added by section 3301 of Title III, Subtitle D, of theFood, Conservation, and Energy Act of 2008, which requires thePresident to establish and maintain an importer declaration programwith respect to the importation of certain softwood lumber and soft-wood lumber products and prescribes special entry requirementswhereby importers must submit the export price, estimated exportcharge, if any, and an importer declaration with the entry summary.The Act also established new recordkeeping requirements applicableto certain imports of softwood lumber home packages and kits thatare subject to declaration requirements, but that are not subject tothe softwood lumber importer declaration program of section 803 ofthe Act.

EFFECTIVE DATE: AUGUST 26, 2010.

1

FOR FURTHER INFORMATION CONTACT: Renee D.Chovanec, Chief, International Coordination, Trade Agreementsand Planning Division, Office of International Trade, Tel: (202)863–6384.

SUPPLEMENTARY INFORMATION:Background

On August 25, 2008, CBP published in the Federal Register (73FR 49934), as Customs and Border Protection Decision (CBP Dec.)08–32, interim regulations prescribing special entry and documenta-tion requirements applicable to certain softwood lumber and softwoodlumber products exported from any country into the United States.These interim regulations, set forth in new § 12.142 of title 19 of theCode of Federal Regulations (19 CFR 12.142), implemented the termsof Title VIII (Softwood Lumber Act of 2008 or “the Act”) of the TariffAct of 1930, as added by section 3301 of Title III, Subtitle D, of theFood, Conservation, and Energy Act of 2008 (Public Law 110–246,enacted June 18, 2008). The Act required the President to establishand maintain an importer declaration program with respect to theimportation of certain softwood lumber and softwood lumber productsand prescribe special entry requirements whereby importers mustprovide the export price, estimated export charge, if any, and animporter declaration with the entry summary documentation. TheAct also imposed new recordkeeping requirements applicable to cer-tain imports of softwood lumber home packages and kits.

CBP solicited public comment on the interim rule.

Discussion of Comments

Five commenters responded to the solicitation of comments in CBPDec. 08–32, and CBP considered all comments that were timely sub-mitted. Several of the commenters raised numerous issues in each oftheir submissions and these issues are addressed individually in thisdocument. A description of the comments received, together withCBP’s analyses, is set forth below.

Comment:

One commenter notes that while it considers the additional report-ing requirements imposed on softwood lumber imports by the Actunnecessary, CBP has nevertheless chosen the best method for col-lecting the required data. The commenter further suggests that theadditional reporting requirements will impose further collection andreporting burdens on importers that will translate into additionalcosts that importers that will pass down to consumers.

2 CUSTOMS BULLETIN AND DECISIONS, VOL. 44, NO. 38, SEPTEMBER 15, 2010

CBP Response:

Pursuant to the terms of the Act, CBP is required to collect theinformation described in CBP Dec. 08–32. While CBP is cognizant ofthe additional reporting burden the new softwood lumber entry re-quirements place on the importer, the agency has devised a method ofdata collection that minimizes the associated costs and burdens toimporters of softwood lumber and softwood lumber products.

Comment:

One commenter suggests that CBP should explain in the final rulethat the declaration language set forth in § 12.142(c)(3)(iii)(B)(3),which states that “the exporter has paid, or committed to pay, allexport charges due,” includes export charges that may be imposedretroactively after initial export charges are collected.

CBP Response:

Section 12.142(c)(3)(iii)(B)(3) of the interim rule requires the im-porter to declare, to his best knowledge and belief, that the exporterhas paid or committed to pay “all export charges due.” It is CBP’sview that as this language includes export charges imposed retroac-tively after initial export charges are collected, the commenter’s sug-gested language is unnecessary.

Comment:

One commenter submits that CBP Dec. 08–32 properly reflects therequirements of the Act and should be adopted as final withoutchange.

CBP Response:

CBP agrees that CBP Dec. 08–32 properly reflects the requirementsof the Act.

Comment:

One commenter recommends that the final rule should retain thecondition set forth in CBP Dec. 08–32 that an importer declaration isrequired for each shipment of covered merchandise and that blanketdeclarations should not be accepted.

CBP Response:

CBP concurs and will continue to require a declaration on eachentry summary line item in the final rule.


Comment:

One commenter notes that the 2008 Harmonized Tariff Schedule ofthe United States (HTSUS) subheading numbers set forth in section804(a) of the Act, which describe products covered by the Act, maychange over time. The commenter states that as section 804(d) of theAct addresses this issue by providing that “the descriptions of thecovered articles, rather than the HTS subheading number, controlwhether a product is covered by the importer declaration program,” §12.142(b) should be amended accordingly.

CBP Response:

CBP is of the view that § 12.142(b) accurately reflects the scope ofthe statutory language and does not require further clarification.Section 804(d) of the Act provides, “[F]or purposes of determining if aproduct is covered by the importer declaration program, the Presi-dent shall be guided by the article descriptions provided in thissection.” Section 804(a) of the Act describes the products covered bythe softwood lumber importer declaration program by identifying theapplicable HTSUS tariff subheading numbers and accompanying ar-ticle descriptions. The commenter’s concern that potential changes tothe 2008 HTSUS subheadings identified in section 804(a) of the Actmay have the effect of altering the scope of coverage is unwarrantedinasmuch as section 804(d) of the Act ensures that a product’s de-scription will dictate whether it is covered by the Act. The fact thatan article, otherwise described in section 804(a) of the Act, may besubsequently classified in a HTSUS subheading that is different fromthe tariff provisions originally listed in the statute will not precludethat article from being covered by the Act.

Comment:

One commenter is of the opinion that a conflict exists between themanner by which the export price must be reported on the entrysummary pursuant to the Softwood Lumber Act of 2008 and theU.S.-Canada Softwood Lumber Agreement (SLA) of 2006. Specifi-cally, the commenter notes that pursuant to the Softwood LumberAgreement of 2006 the Canadian-issued export permit allows for anaggregated export price. Conversely, pursuant to section 803(b)(1) ofthe Softwood Lumber Act of 2008, the export price reported on theentry summary may not be aggregated and must be listed for eachline with a different line required for each consignee.


CBP Response:

CBP acknowledges that Canadian-issued export permits oftenpresent the export price as an aggregate figure. Presenting this dataas an aggregate is not prohibited by the terms of the U.S.-CanadaSoftwood Lumber Agreement of 2006; however, it is prohibited underthe terms of the Softwood Lumber Act of 2008, which requires thatthe export price reported on the entry summary be listed for each linewith a different line required for each consignee. To reconcile thissituation, CBP advises that in situations where the export price on aCanadian-issued export permit is aggregated, importers should allo-cate the export price among the lines on the entry summary. Forexample, if the export price listed on the export permit is $1000 andthere are two line items on the entry summary, divide the $1000 toreflect each line item’s respective percentage of the entered value. Ifseventy five percent (75%) of the entered value is reported on one lineitem and twenty five percent (25%) on the other, then list $750 as theexport price on the first line item and $250 as the export price on theother line item. The export price listed on both line items on the entrysummary should add up to the export price on the one line item of theCanadian-issued export permit.

Comment:

One commenter raises the concern that the reconciliation require-ments set forth in the Act put into place a process that overlaps withthe reconciliation process mandated under the U.S.-Canada SoftwoodLumber Agreement of 2006 and that this could cause confusion ordelay.

CBP Response:

CBP does not view the data collection and reconciliation require-ments mandated by the Softwood Lumber Act of 2008 to be in conflictwith those required by the U.S.-Canada Softwood Lumber Agreementof 2006. CBP acknowledges that while some of the data required tobe submitted by importers pursuant to the 2008 Act may also becollected by Canada pursuant to the 2006 Agreement, there is noduplication in that a shipper is not required to submit the sameinformation to the same country more than once. The common dataelements that are submitted to both the U.S. and Canada should bethe same. Therefore data reconciliation as required under the Soft-wood Lumber Act of 2008 should not affect data reconciliations underthe U.S.-Canada Softwood Lumber Agreement of 2006.


Comment:

One commenter notes that the interim rule set forth in CBP Dec.08–32 unnecessarily places an increased burden on importers. It alsoimpacts small and medium–sized enterprises, including the U.S.housing industry, and is likely to have a trade dampening effect.

CBP Response:

With regard to the commenter’s statement that the interim ruleplaces an unnecessary burden on importers, CBP reiterates that theinterim rule merely implements the entry and recordkeeping require-ments mandated by the Softwood Lumber Act of 2008. The interimrule does not impose any burdens on trade other than those explicitlyrequired by law. Moreover, the prescribed method of data collectionset forth in the regulation is intended to streamline the reportingprocess and minimize any administrative burden associated withreporting the required information. This process should help miti-gate the administration burden for all enterprises, including smalland medium-sized businesses.

Comment:

One commenter requests that CBP identify the standard to be usedin assessing civil penalties under the Softwood Lumber Act of 2008 byusing the standard contained in 19 U.S.C. 1592 in a new 19 CFR12.142(f).

CBP Response:

CBP does not believe it is necessary to add this language to 19 CFR12.142 as the standards for assessing civil and criminal penalties areclearly prescribed by section 808 of the Softwood Lumber Act of 2008.

Comment:

One commenter states that CBP Dec. 08–32 does not specify whichdate should be used as the basis for the export price and export chargelisted on the entry summary line. Without specifying the date re-quired as the basis for the export price and export charge, differentdates may be used which would create discrepancies between theexport permit date and the entry summary data. The commentersuggests using the shipping date to be consistent with the U.S.-Canada Softwood Lumber Agreement of 2006.


CBP Response:

CBP does not believe this change is necessary as importers ofsoftwood lumber and softwood lumber products from Canada needonly report the export price listed on the permit issued by the Gov-ernment of Canada.

Comment:

One commenter notes that CBP Dec. 08–32 does not reflect the factthat Canadian exporters are permitted to cap the export price at $500per thousand board feet when calculating the export charge. For thisreason, the commenter submits that the export price on the entrysummary will be inconsistent with that on the Canadian exportpermit when capped.

CBP Response:

CBP does not believe this change is necessary as importers ofsoftwood lumber and softwood lumber products only need to reportthe export price listed on the permit issued by the Government ofCanada.

Comment:

One commenter requests that CBP add language to the interim rulethat provides that where an international agreement between a coun-try that exports softwood lumber or softwood lumber products and theUnited States provides greater specificity regarding aspects of theSoftwood Lumber Act of 2008, CBP will implement 19 CFR 12.142 inaccordance with the more specific law to the extent that it does notconflict with the 2008 Act.

CBP Response:

CBP is of the view that such language is unnecessary. CBP Dec.08–32 implements the Softwood Lumber Act of 2008 in a manner thatdoes not conflict with international softwood lumber agreements towhich the U.S. is a signatory.

Comment:

One commenter strongly supports the requirement for the presen-tation of the original paper Maritime Lumber Bureau Certificate ofOrigin, as prescribed in CBP Dec. 08–32. The commenter, however,urges CBP to exclude entirely softwood lumber imported from theCanadian Maritime provinces from the importer declaration programpromulgated in 19 CFR 12.142.


CBP Response:

The Softwood Lumber Act of 2008 requires CBP to collect the exportprice, export charge, if any, and importer declaration on all importa-tions of covered softwood lumber and softwood lumber products.Accordingly, CBP is without authority to except softwood lumberimported from the Canadian Maritime provinces from the importerdeclaration program. CBP will continue to require the presentationof the original paper Maritime Lumber Bureau Certificate of Origin.

Conclusion

After review of the comments and further consideration, CBP hasdecided to adopt as final the interim rule published in the FederalRegister (73 FR 49934) on August 25, 2008, as CBP Dec. 08–32.

Inapplicability of Notice and Delayed EffectiveDate Requirements

CBP has determined, pursuant to the provisions of 5 U.S.C.553(b)(B) and (d)(3), that prior public notice and comment procedureson this regulation are unnecessary and contrary to the public inter-est. These regulations align the CBP regulations to reflect the termsof Title VIII of the Tariff Act of 1930, as added by section 3301 of TitleIII, Subtitle D, of the Food, Conservation, and Energy Act of 2008(Public Law 110–246, enacted June 18, 2008), which went into effectAugust 18, 2008. The regulatory amendments inform the public ofthe special entry and documentation requirements applicable to cer-tain softwood lumber and softwood lumber products exported fromany country into the United States. The regulations are currently ineffect as an interim rule and this final rule does not change theinterim rule. For these reasons, pursuant to the provisions of 5U.S.C. 553(d)(3), CBP finds that there is good cause for dispensingwith a delayed effective date.

Regulatory Flexibility Act and Executive Order 12866

CBP Dec. 08–32 was issued as an interim rule rather than a noticeof proposed rulemaking because CBP had determined there was goodcause. The amendments were necessary to inform the public on howto comply with statutory requirements. Because no notice of pro-posed rulemaking was required, the provisions of the RegulatoryFlexibility Act (5 U.S.C. 601 et. seq.) do not apply. Further, theseamendments do not meet the criteria for a “significant regulatoryaction” as specified in E.O. 12866.


Paperwork Reduction Act

The collections of information in this document are contained in §§12.142(c) and (d) (19 CFR 12.142(c) and (d)). This information is usedby CBP to fulfill its information collection obligations under Title VIIIof the Tariff Act of 1930, as added by section 3301 within Title III,Subtitle D, of the Food, Conservation, and Energy Act of 2008 (PublicLaw 110–246), whereby importers of certain softwood lumber andsoftwood lumber products are required to submit the export price,estimated export charge, if any, and an importer declaration with theentry summary information or, where applicable, to submit addi-tional documentation required for home packages and kits. Thelikely respondents are business organizations including importersand brokers.

The collection of information associated with the entry summarydocumentation (CBP Form 7501) was previously approved by theOffice of Management and Budget under control number 1651–0052.In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.3507), CBP has submitted to OMB for review an adjustment to theinformation provided to OMB for the previously approved OMB con-trol number to account for the changes in this rule. The estimatedannual burden associated with the collection of information in thisfinal rule is now estimated to be 1,269 hours per respondent. Anagency may not conduct or sponsor, and a person is not required torespond to, a collection of information unless it displays a validcontrol number assigned by OMB.

Signing Authority

This document is being issued in accordance with 19 CFR 0.1(a)(1).

List of Subjects

19 CFR Part 12

Bonds, Customs duties and inspection, Entry of merchandise, Im-ports, Prohibited merchandise, Reporting and recordkeeping require-ments, Restricted merchandise.

19 CFR Part 163

Customs duties and inspection, Reporting and recordkeeping re-quirements.


Amendment to the CBP Regulations

Accordingly, the interim rule amending Parts 12 and 163 of theCBP Regulations (19 CFR Parts 12 and 163), which was published at73 FR 49934 on August 25, 2008, is adopted as a final rule.

ALAN BERSIN

CommissionerU.S. Customs and Border Protection

Dated: August 23, 2010TIMOTHY E. SKUD

Deputy Assistant Secretary of the Treasury

[Published in the Federal Register, August 26, 2010 (75 FR 52453)]

◆

19 CFR PART 111

USCBP – 2008–0059

CBP DEC. 10–28

RIN 1651 – AA74

CUSTOMS BROKER LICENSE EXAMINATION INDIVIDUALELIGIBILITY REQUIREMENTS

AGENCY: Customs and Border Protection, Department of Home-land Security.

ACTION: Final rule.

SUMMARY: This final rule adopts, with one modification, proposedchanges U.S. Customs and Border Protection (CBP) regulations re-garding the requirements that an individual must satisfy in order totake the written examination for an individual customs broker’slicense, which is administered by CBP. Under this final rule, in orderto be eligible to take the examination, an individual must on the dateof examination be a citizen of the United States who has attained theage of 18 years and who is not an officer or employee of the U.S.Government. These changes will facilitate the overall licensing pro-cess by enabling individuals who have attained the age of 18 to takethe examination in order to gain valuable experience while ensuringthey would not be precluded from obtaining a license upon turning 21because of citizenship or employment status.

EFFECTIVE DATE: This final rule is effective on August 26,2010.


FOR FURTHER INFORMATION CONTACT: Anita Harris,Chief, Broker Compliance Branch, Office of International Trade,(202) 863–6069.

SUPPLEMENTARY INFORMATION:

Background

Section 641 of the Tariff Act of 1930, as amended (19 U.S.C. 1641),provides that a person (an individual, corporation, association, orpartnership) must hold a valid customs broker’s license and permit inorder to transact customs business on behalf of others, sets forthstandards for the issuance of broker’s licenses and permits, andprovides for the taking of disciplinary action against brokers thathave engaged in specified types of infractions. In the case of anapplicant for an individual broker’s license, § 641 states that theSecretary of the Treasury may conduct an examination to determinesuch applicant’s qualifications for a license. Section 641 also autho-rizes the Secretary of the Treasury to prescribe rules and regulationsrelating to the customs business of brokers as necessary to protectimporters and the revenue of the United States and to carry out theprovisions of § 641.

The Homeland Security Act of 2002, 6 U.S.C. 101 et. seq., PublicLaw 107–296 (Nov. 25, 2002) (the “HSA”) established the Departmentof Homeland Security (DHS) and transferred the U.S. Customs Ser-vice from the Department of the Treasury to DHS, effective March 1,2003. Section 1502 of the HSA renamed the “Customs Service” as the“Bureau of Customs and Border Protection,” which has since beenrenamed U.S. Customs and Border Protection (CBP). See 72 FR20131_(April 23, 2007) and 75 FR 12445 (March 16, 2010).

Treasury Department Order No. 100–16 (see Appendix to 19 CFRPart 0) delegates to DHS the authority to prescribe the rules andregulations relating to customs brokers.

The regulations issued under the authority of § 641 are set forth inpart 111 of title 19 of the Code of Federal Regulations (19 CFR part111). Part 111 includes detailed rules regarding the licensing of, andgranting of permits to, persons desiring to transact customs businessas customs brokers. These rules include the qualifications required ofapplicants and the procedures for applying for licenses and permits.Section 111.11 (19 CFR 111.11) sets forth the basic requirements forobtaining a broker’s license. Paragraphs (a)(1) through (a)(4) of §111.11 provide that, in order to obtain a customs broker’s license, anindividual must: be a citizen of the United States upon applying forthe license and not an officer or employee of the United States; attainthe age of 21 prior to the date of application for such license; be of


good moral character; and, obtain a passing grade on the writtenexamination within a 3-year period before submission of the applica-tion.

The regulations relating to the written examination for an indi-vidual customs broker’s license are set forth in § 111.13 (19 CFR111.13). Paragraph (b) of § 111.13, pertaining to the date and place ofthe examination, provides that an individual intending to take theexamination must advise the appropriate port director in writing atleast 30 calendar days prior to the scheduled examination date andremit the $200 examination fee prescribed in paragraph (a) of §111.96. There were previously no additional requirements in § 111.13that were required to be fulfilled in order for an individual to sit forthe customs broker’s license examination.

Notice of Proposed Rulemaking

On May 27, 2008, CBP published a notice of proposed rulemakingin the Federal Register (73 FR 30328; the “NPRM”) that proposedto amend § 111.13 to more closely align the basic requirements thatan individual must satisfy to take the written examination for acustoms broker’s license with the basic requirements an individualmust satisfy to obtain an customs broker’s license. In order to beeligible to take the written examination under the amendments pro-posed in the NPRM, an individual would be required to be a U.S.citizen on the date of examination and not be an officer or employeeof the U.S. Government, and to have attained the age of 21 prior tothe date of examination.

The NPRM explained that the proposed amendments would facili-tate the overall licensing process by helping to ensure that thosesitting for the examination are not automatically precluded fromobtaining a license by reason of age, citizenship status, or employ-ment. It was also noted that limiting the examination to U.S. citizensis a reasonable security measure that conforms to the existing citi-zenship requirement for obtaining a license. In addition, by barringU.S. Government employees from taking the examination, thechanges proposed in the NPRM would help to eliminate the appear-ance of any conflict of interest or unfair advantage that might beassociated with their federal government employment.

The NPRM also proposed non-substantive amendments to §111.13(a), (c), and (e) to reflect the nomenclature changes effected bythe transfer of the U.S. Customs Service to the Department of Home-land Security.

Comments were solicited in the NPRM of May 27, 2008. Thecomment period closed on July 28, 2008.


Discussion of Comments

Four commenters responded to the solicitation of comments in theNPRM. A description of the comments received and CBP’s responseis set forth below.

Comment:

One commenter did not support the proposed requirement that anindividual attain the age of 21 prior to the date of the broker exami-nation because this requirement would inhibit the career potential ofindividuals who can currently take and pass the examination andsubsequently apply to obtain a customs broker’s license upon turning21 years old. In this regard, the commenter suggests that CBP reducethe age limitation proposed in the NPRM.

CBP Response:

After further considering the age limit issue, CBP agrees with thecommenter that the limit should be lowered from the proposed 21years to 18 years of age to provide greater opportunities for individu-als who have graduated from high school and are in the process ofgaining work experience before being eligible to apply for a broker’slicense. CBP notes that the age of majority (adulthood) in the UnitedStates is generally considered to be 18 years and that age 18 isconsistent with the requirement that an application for an individualbroker’s license must be submitted within a 3-year period after theapplicant takes and passes the written examination. See 19 CFR111.12(a). A less restrictive age requirement ensures that an indi-vidual will still be able to apply to obtain a license upon turning 21years old while having the opportunity to work under the supervisionand control of a licensed broker or brokerage for a greater time periodafter having taken the exam. Accordingly, since CBP is adopting thecommenter’s suggestion to modify the age limit, § 111.13(b) isamended in the final rule to require that an individual must only be18 years old on the date of the examination.

Comment:

One commenter, an association that provides a preparatory train-ing course for individuals intending to take the written examination,stated that it was initially concerned that the age and citizenshiprequirements proposed in the NPRM would negatively impact itsbusiness by reducing the number of applicants who are eligible to sitfor the examination. However, the commenter specifically noted thatonly one out of 203 applicants enrolled in its course for the October2008 examination would not have met the age and citizenship re-


quirements to take the examination as proposed in the NPRM. Assuch, the commenter supports the proposed amendments since therewas no economic impact on its business.

CBP Response:

CBP appreciates the commenter’s input and its review of the po-tential impact that the proposed amendments would have had on itsbusiness. Since CBP is modifying the age requirement from 21 yearsto 18 years based upon the input of another commenter, CBP believesthere is even less of a restriction on those who would likely enroll inthe commenter’s preparatory course.

Comment:

A commenter opposed the amendments in the NPRM based uponthe amount of time it takes to obtain a license after passing theexamination. The commenter would only support the proposedamendments if CBP was required to issue a license within six monthsof passing the examination.

CBP Response:

CBP understands the commenter’s concern regarding the timelyissuance of customs brokers’ licenses after passing the examination.However, CBP believes that requiring licenses to be issued within amandatory timeframe would not be operationally practical or in fur-therance of CBP’s mission of facilitating legitimate trade. In thisregard, CBP initially notes that the broker’s examination is intendedonly to evaluate and verify an applicant’s knowledge of relevantcustoms laws and regulations. The background investigation de-scribed in § 111.14, which must be completed after an individualpasses the examination but before a license is issued, is intended toverify the accuracy of the statements made in the application, thebusiness integrity of the applicant, and the moral character andreputation of the applicant. CBP has a legitimate interest in closelyscrutinizing applicants who will be transacting customs business onbehalf of importers before granting a license. Considering the generalscope of the background investigation, the circumstances unique toeach applicant’s background that may require more time to investi-gate, and the number of Federal agencies that may ultimately assistin the investigation (e.g., Federal Bureau of Investigation, U.S. Im-migration and Customs Enforcement, CBP), it is clear that imposinga regulatory requirement to issue a license within an arbitrary timeframe would not be operationally practical and would hinder CBP’sability to verify that licenses are issued to qualified individuals.


Comments:

One commenter, a large clothing retailer, did not support theamendment in the NPRM to preclude non-U.S. citizens from takingthe examination. In support of its position, the commenter statesthat the private sector does not have an equivalent to the examina-tion and notes that employers may hire and promote individualsbased solely upon their ability to pass the examination. In addition,the commenter states that preventing non-U.S. citizens from takingthe examination would be discriminatory since it would prevent legalresident aliens from advancing their careers in the sense that theexamination is the only measurement of an individual’s competencein the trade compliance field.

CBP Response:

CBP initially notes that the customs broker’s license examination isnot designed to be used as a tool by private sector employers to gaugewhether job applicants or current employees possess the requisiteknowledge to be employed or promoted in the trade compliance field.Rather, the examination is administered so that CBP can evaluateand verify an applicant’s knowledge of relevant customs laws andregulations for purposes of granting an individual customs broker’slicense. In addition, CBP disagrees that the examination is the onlymeasurement of an individual’s competence in the trade compliancefield because employers have the option to utilize privately-developedbenchmarks or other academic tools to evaluate an individual’s apti-tude. Moreover, CBP disagrees that preventing non-U.S. citizensfrom taking the examination would be discriminatory because theamendment set forth in the NPRM and adopted in this document willmerely align the requirement for taking the examination with theexisting statutory requirement of citizenship for obtaining a license.See 19 U.S.C. 1641(b)(2).

Conclusion

After analysis of the comments and further review of matter, CBPhas decided to adopt as final, with the modification discussed above inthe comment analysis, the NPRM published in the Federal Register(73 FR 30328) on May 27, 2008. In addition, minor editorial changeshave been made to the regulatory text for clarity.

Regulatory Flexibility Act

Pursuant to the provisions of the Regulatory Flexibility Act (5U.S.C. 601 et. seq.), it is certified that the amendments in this docu-ment do not have a significant economic impact on a substantial


number of small entities because the final rule more closely aligns therequirements for taking the written examination for an individualcustoms broker’s license with the requirements for actually obtaininga customs broker’s license as to citizenship and employment. Accord-ingly, the amendments set forth in this document are not subject tothe regulatory analysis or other requirements of 5 U.S.C. 603 and604.

Executive Order 12866

This final rule does not meet the criteria to be considered an eco-nomically “significant regulatory action” under Executive Order12866 because it will not result in the expenditure of over $100million in any one year. The Office of Management and Budget(OMB) has not reviewed this rule under that Order.

Signing Authority

This document is being issued by CBP in accordance with § 0.1(b)(1)of the CBP regulations (19 CFR 0.1(b)(1)).

List of Subject in 19 CFR Part 111

Administrative practice and procedure, Brokers, Customs dutiesand inspection, Imports, Licensing, Reporting and recordkeeping re-quirements.

Amendments to the CBP Regulations

For the reasons set forth in the preamble, part 111 of title 19 ofthe Code of Federal Regulations (19 CFR part 111) is amendedas set forth below.

PART 111 – CUSTOMS BROKERS

1. The general authority citation for part 111 continues to read asfollows:

Authority: 19 U.S.C. 66, 1202 (General Note 3(i), HarmonizedTariff Schedule of the United States), 1624, 1641.

* * * * *2. In § 111.13:

a. Paragraph (a) is amended by removing the words “CustomsHeadquarters” and adding in its place, the words “Customs andBorder Protection (CBP) Headquarters”;

b. Paragraph (b) is amended by revising the heading and addinga new first sentence;

c. Paragraph (c) is amended by removing the word “Customs”each place it appears and adding in its place, the term “CBP”; and


d. Paragraph (e) is amended by removing the word “Customs” inthe first sentence and adding in its place, the term “CBP”.

The additions and revision to paragraph (b), referenced above,read as follows:

§ 111.13 Written examination for individual license.

* * * * *

(b) Basic requirements, date, and place of examination. In order tobe eligible to take the written examination, an individual must on thedate of examination be a citizen of the United States who has attainedthe age of 18 years and who is not an officer or employee of the UnitedStates Government. * * *

* * * * *Dated: August 18, 2010

ALAN BERSIN



◆

19 CFR PARTS 4, 10, 12, 18, 101, 103, 118, 122, 141, 146, 159,162, AND 192

CBP DEC. 10–29

TECHNICAL CORRECTIONS TO CUSTOMS AND BORDERPROTECTION REGULATIONS

AGENCY: Customs and Border Protection, Department of Home-land Security.

ACTION: Final rule.

SUMMARY: Customs and Border Protection (CBP) periodically re-views its regulations to ensure that they are current, correct, andconsistent. Through this review process, CBP discovered a number ofdiscrepancies. This document amends various sections of title 19 ofthe Code of Federal Regulations to amend those discrepancies.

DATES: The final rule is effective August 26, 2010.

FOR FURTHER INFORMATION CONTACT: Robert Shervette,Regulations and Rulings, Office of International Trade, (202)325–0274.


SUPPLEMENTARY INFORMATION:Background

It is the policy of Customs and Border Protection (CBP) to periodi-cally review title 19 of the Code of Federal Regulations to ensure thatit is as accurate and up-to-date as possible so that the importing andgeneral public are aware of CBP programs, requirements, and proce-dures regarding import-related activities. As part of this reviewpolicy, CBP has determined that certain corrections are necessaryaffecting parts 4, 10, 12, 18, 101, 103, 118, 122, 141, 146, 159, 162, and192 of the CBP regulations (19 CFR parts 4, 10, 12, 18, 101, 103, 118,122, 141, 146, 159, 162, and 192).

Discussion of Changes

Part 4

Section 4.12 of the CBP regulations (19 CFR 4.12), involving theprocess of notifying CBP of a manifest discrepancy, contains a typo-graphical error in the designation of paragraph “(a)(5)(a)”. The para-graph should properly read as “(a)(5)”. Accordingly, this documentamends § 4.12 by replacing the paragraph designation “(a)(5)(a)” with“(a)(5)”.

Part 10

Section 10.31(g) of the CBP regulations (19 CFR 10.31(g)) providesfor free entry of particular classes of products which have previouslybeen entered if the “original entry was made on the basis of a clericalerror, mistake of fact, or other inadvertence within the meaning ofsection 520(c)(1) of the Tariff Act of 1930, as amended.” Section 520(c)of the Tariff Act of 1930 (19 U.S.C. 1520(c)), which was an exceptionto the finality of the liquidation of an entry under section 514 of theTariff Act of 1930 (19 U.S.C. 1514), was repealed by section 2105 ofthe Miscellaneous Trade and Technical Corrections Act of 2004(“Trade Act of 2004”) (Public Law 108–429, 118 Stat. 2598 (December3, 2004)). Section 2103(1)(A) of the Trade Act of 2004 also amendedsection 514(a) of the Tariff Act of 1930 (19 U.S.C. 1514(a)) to includeclerical errors, mistakes of fact, and other inadvertence as bases ofprotest of CBP decisions. See Public Law 108–429, 118 Stat. 2597.Therefore, in order to reflect the inclusion of clerical error, mistake offact, or other inadvertence as bases of protest in section 514(a) andthe removal of section 520(c), § 10.31(g) is amended to replace thereference to section 520(c)(1) of the Tariff Act of 1930, as amended,with a reference to section 514(a) of the Tariff Act of 1930, asamended. In addition, § 10.31(g) is being amended by replacing


outdated references to “Customs custody”, “the Customs Service”, and“Customs territory” with “CBP custody”, “CBP”, and “customs terri-tory”, respectively. This is consistent with the transfer of the legacyU.S. Customs Service of the Department of the Treasury to the De-partment of Homeland Security (DHS) in 2003 and the subsequentrenaming of the agency as U.S. Customs and Border Protection byDHS on March 31, 2007 (see 72 FR 20131, dated April 23, 2007). Seealso 75 FR 12445, dated March 16, 2010.

Section 10.36(b) of the CBP regulations (19 CFR 10.36(b)), pertain-ing to the temporary importation under bond of theatrical effects andother articles contains a reference to subheading 9813.00.65, Harmo-nized Tariff Schedule of the United States (HTSUS), 19 U.S.C. 1202.This tariff number was replaced on January 4, 1995, with subheading9817.00.98, HTSUS, by Presidential Proclamation 6763 (December23, 1994). Section 10.36(b) is amended to replace the outdated sub-heading with subheading 9817.00.98, HTSUS. Section 10.36 is alsobeing amended to replace outdated nomenclature references to reflectthe changes effected by the transfer of CBP to DHS.

Sections 10.191(b)(1) and 10.195(b)(1) of the CBP regulations (19CFR 10.191(b)(1) and 10.195(b)(1)), involving regulations implement-ing the Caribbean Basin Economic Recovery Act (CBERA), are beingamended to conform to amendments to the CBERA enacted in the2005 Dominican Republic—Central America—United States FreeTrade Agreement Implementation Act (CAFTA-DR Act) (Public Law109–53, 119 Stat. 462). Section 402(a) and (c) of the CAFTA-DR Actamended sections 212(a)(1) and 213(a)(1), respectively, of the CBERA(19 U.S.C. 2702(a)(1) and 2703(a)(1)). As a result of these amend-ments, any cost or value of materials or direct costs of processingoperations attributable to “former beneficiary countries” may be in-cluded for purposes of satisfying the 35 percent value-content re-quirement under the CBERA (see 19 U.S.C. 2702(a)(1)(B)). “Formerbeneficiary countries” are defined in the 2005 CAFTA-DR Act ascountries that are no longer designated beneficiary countries underthe CBERA because they have become parties to a free trade agree-ment with the United States.

This document amends § 10.191(b)(1) by adding language statingthat when the word “former” is used in conjunction with “beneficiarycountry” it means a country that ceases to be designated as a benefi-ciary country because the country has become a party to a separatefree trade agreement with the United States. Section 10.191(b)(1) isalso being amended in this document by adding references to GeneralNotes 7(a) and 7(b)(i)(C), HTSUS, which list the CBERA beneficiarycountries and former beneficiary countries, respectively. In addition,


this document amends § 10.195(b)(1) by adding a reference to “formerbeneficiary country.” Currently, “former beneficiary countries” con-sist of the 6 countries that are parties to the CAFTA-DR (other thanthe United States)—Costa Rica, Dominican Republic, El Salvador,Guatemala, Honduras, and Nicaragua.

Section 10.411(a)(2)(vi) of the CBP regulations (19 CFR10.411(a)(2)(vi)), involving the certification of origin import require-ments under the United States-Chile Free Trade Agreement (CFTA),contains an incorrect reference to § 10.411(e). The correct referenceshould be to § 10.411(f), which is the paragraph that lists the prefer-ence criteria that should be included on the certification of origindocumentation. Section 10.411(e) has nothing to do with the “pref-erence criterion” reference in § 10.411(a)(2)(vi). This documentamends § 10.411(a)(2)(vi) by replacing the reference to “paragraph(e)” with “paragraph (f)”.

Section 10.442(d)(1) of the CBP regulations (19 CFR 10.442(d)(1))sets forth the circumstances under which CBP may deny post-importation duty refund claims under the CFTA. These circum-stances include a determination by the port director that the im-ported good did not qualify as an originating good at the time ofimportation “following initiation of an origin verification”. This docu-ment amends § 10.442(d)(1) by removing the potentially misleadingwords “initiation of” from the above-quoted phrase to more accuratelyreflect when determinations are made by CBP based upon the resultsof origin verifications.

Section 10.470(a) of the CBP regulations (19 CFR 10.470(a)), con-cerning verifications by CBP of CFTA preference claims, inadvert-ently omits any reference to post-importation duty refund claimsmade under § 10.442. This document amends the introductory text of§ 10.470(a) to add a reference to “§ 10.442” immediately after thereference to “10.410” to clarify that the port director may initiate averification with respect to both post-importation duty refund claimsand preference claims made at the time of importation.

Section 10.809(d)(7) of the CBP regulations (19 CFR 10.809(d)(7)),involving terms that are defined for the purposes of the rules of originunder the United States-Bahrain Free Trade Agreement (BFTA),contains an incorrect reference to “paragraph (d)(5)”. This does notaccurately reflect section 202(i)(3)(G) of the United States-BahrainFree Trade Agreement Implementation Act, Public Law 109–169, 119Stat. 3581 (19 U.S.C. 3805 note). The correct reference should be to“paragraph (d)(6)”. This document amends § 10.809(d)(7) by replac-ing the reference to “paragraph (d)(5)” with “paragraph (d)(6)”.


In § 10.809(n) of the CBP regulations (19 CFR 10.809(n)), whichdefines “simple combining or packaging operations”, the words “orpacking or repacking” toward the end of the definition should read“and repacking and packaging” to be consistent with the implement-ing statute, section 202(i)(10) of the United States-Bahrain FreeTrade Agreement Implementation Act. This document amends §10.809(n) to replace the words “or packing or repacking” with thewords “and repacking and packaging”.

Section 10.811(a)(1) of the CBP regulations (19 CFR 10.811(a)(1))sets forth the maximum percentage of the production weight of fibersand yarns not originating in Bahrain or the United States that maybe used in the production of a textile or apparel good and still qualifythe good for preferential tariff treatment under the BFTA. There isan omission in this paragraph with reference to the words “. . . thetotal weight of all such fibers is not more . . . ”. These words shouldread “. . . the total weight of all such fibers or yarns is not more . . .”(emphasis added). See section 202(h)(1)(A) of the United States-Bahrain Free Trade Agreement Implementation Act. This documentamends § 10.811(a)(1) by adding the words “or yarns” following thewords “all such fibers”.

Part 12

Section 12.8 of the CBP regulations (19 CFR 12.8), involving theinspection, bonding, and release of meat and meat-food products,contains a reference to “section 306, Tariff Act of 1930”. That provi-sion was repealed by section 10418(a)(5) of the Farm Security andRural Investment Act of 2002 (Public Law 107–171, 116 Stat. 507(May 13, 2002)). Currently, the regulation of meat and meat-foodproducts entering the United States is covered by the Animal HealthProtection Act (7 U.S.C. 8301, et seq.). Accordingly, this documentamends part 12 of the CBP regulations (19 CFR part 12) to removethe reference and reflect the correct authority citation in § 12.8. Inaddition, § 12.8 is being amended by replacing references to “Cus-toms” with “CBP”.

Section 12.74 of the CBP regulations (19 CFR 12.74), which relatesto the documentation required for importation of nonroad and sta-tionary engines relative to the emission standards set by the Envi-ronmental Protection Agency (EPA), contains inaccurate citations tothe regulations of the EPA. The EPA published a final rule in theFederal Register on July 11, 2006 (71 FR 39154), which establishednew standards of performance for stationary compression ignitioninternal combustion engines, and was effective on September 11,


2006. Accordingly, this document amends part 12 of the CBP regu-lations (19 CFR part 12) to conform § 12.74 to the current EPAregulations.

Section 12.112(b) of the CBP regulations (19 CFR 12.112(b)) per-tains to the importation of chemicals that can be used as pesticides,but are not imported for use as pesticides. This section contains aninaccurate reference to “the Abbreviated List of Pesticides compiledby the Environmental Protection Agency”. This document amends §112.12(b) to remove the incorrect reference and replace it with thecorrect title of the EPA Handbook which contains the listing of thepesticide products and a cite to that agency’s website for the public’sconvenience.

Section 12.123(b) of the CBP regulations (19 CFR 12.123(b)) con-tains a reference to “Customs Form 7551, 7553, or 7595”. Theseforms were abolished and replaced by CBP Form 301 in order tomodernize the CBP bond structure and simplify the transactionsbetween CBP and the importing community. See Treasury Decision(T.D.) 84–213, 49 FR 41171. This document amends § 12.123(b) toremove the outdated references to these forms and replace them withthe correct reference to CBP Form 301.

Parts 12 and 141

Sections 12.1(a), 12.3(a), and 141.113(c) of the CBP regulations (19CFR 12.1(a), 12.3(a), 141.113(c)) set forth, in part, joint regulationsissued by the Food and Drug Administration (FDA), Department ofHealth and Human Services, and the Department of the Treasuryconcerning the admissibility of imported food, drugs, devices, andcosmetics pursuant to sections 701(b) and 801 of the Federal Food,Drug, and Cosmetic Act (FFDCA) (21 U.S.C. 371(b) and 381). OnJune 22, 2009, the Family Smoking Prevention and Tobacco ControlAct (Public Law 111–31, 123 Stat. 1776) was signed by the Presidentinto law and amended the FFDCA to give the FDA the authority toregulate tobacco products, including imported tobacco products. Ac-cordingly, this document amends §§ 12.1(a), 12.3(a), and 141.113(c) ofthe CBP regulations to reflect the addition of “tobacco products” to thelist of imported products subject to regulation under the FFDCA.

Part 18

Section 18.11(e) of the CBP regulations (19 CFR 18.11(e)), involvingentries for immediate transportation without appraisement, containsa typographical error in the first sentence. Section 18.11(e) employsthe word “of” in the phrase “merchandise subject to detention ofsupervision” (emphasis added) when the word “or” should have been


used. This document amends § 18.11(e) to correct the error to clarifythat the entries for immediate transportation without appraisementare subject to either detention or supervision by any Federal agency.In addition, this document amends § 18.11(e) to remove the word“shall” in the first and third sentences and replace it with “must” inorder to reflect the mandatory nature of these requirements.

Part 101

Section 101.3 of the CBP regulations (19 CFR 101.3), which con-tains a list of Ports of Entry and Service Ports, contains an incompleteCBP Decision number for the Port of Entry of Fargo, North Dakota.This document amends § 101.3 to include the correct reference to thedecision which established Fargo, North Dakota as a Port of Entry:CBP Dec. No. 03–09, which was published in the Federal Register(68 FR 42587) on July 18, 2003.

Part 103

Section 103.31 of the CBP regulations (19 CFR 103.31) contains anoutdated reference to the CBP Data Center. This document amends§ 103.31(e)(2) to include the correct reference to the CBP TechnologySupport Center, with the correct telephone number.

Part 118

Section 118.3 of the CBP regulations (19 CFR 118.3), regarding thewritten agreements between CBP and Centralized Examination Sta-tion (CES) operators, is being amended to comply with theMcNamara-O’Hara Service Contract Act of 1965 (SCA) (41 U.S.C.351, et seq.). The SCA applies to every contract entered into by theUnited States or the District of Columbia in excess of $2,500, theprincipal purpose of which is to furnish services to the United Statesthrough the use of service employees. (41 U.S.C. 351(a)). The SCAapplies to the written agreement between CBP and the operator of aCES because this agreement obligates the operator of a CES toperform the specific services listed in § 118.4 of the CBP regulations(19 CFR 118.4), and therefore the principal purpose of the agree-ments is the furnishing of services desired by the United StatesGovernment. Section 118.3 of the CBP regulations (19 CFR 118.3)currently provides that the duration of agreements with CES opera-tors “will not be less than three years nor more than six years.” Theterm “six years” is in conflict with § 353(d) of SCA, which mandatesthat contracts to which the SCA applies may not exceed five years. (41U.S.C. 353(d)). Because the SCA requires that such agreementscannot exceed a term of five years, CBP is amending § 118.3 to reflectthe proper time frame. CBP will honor existing agreements and will


process future agreements with the revised term limits upon theeffective date of this rule. Section 118.3 is also being amended in thisdocument by replacing references to “Customs” with “CBP”.

Part 122

Section 122.42(b)(2) of the CBP regulations (19 CFR 122.42(b)(2))sets forth the requirement for aircraft making entry into the UnitedStates at other than an international airport. As written, §122.42(b)(2) makes a reference to § 122.34, which no longer exists.Section 122.34 was redesignated as § 122.14 by a final rule publishedas Treasury Decision (T.D.) 92–90 in the Federal Register (57 FR43395) on September 21, 1992. Although T.D. 92–90 also amended §122.33(a)(2) to change a reference to § 122.34 with § 122.14 to reflectthe above redesignation, T.D. 92–90 failed to amend 122.42(b)(2) aswell to reflect the change. Additionally, § 122.42(b)(2) should includea reference to the section in the regulations on user fee airports (§122.15) because § 122.42(b)(2) references airports other than inter-national airports; and user fee airports are not international air-ports. Accordingly, this document amends § 122.42(b)(2) of the CBPregulations by replacing the reference to § 122.34 with § 122.14 andby adding a reference to § 122.15.

Part 141

Section 141.4 of the CBP regulations (19 CFR 141.4) sets forthexceptions to the requirement that imported merchandise must beentered. There is an incorrect reference in § 141.4(c) to “General Note19(e)” which should reference “General Note 3(e).” General Note(GN) 19(e) was transferred to GN 3(e) pursuant to the implementa-tion of the 2003 Singapore Free Trade Agreement (SFTA). Thisdocument amends § 141.4(c) to reflect the correct reference to GeneralNote 3(e).

Part 146

Section 146.35 of the CBP regulations (19 CFR 146.35) pertains tothe procedures for the temporary deposit of merchandise in a foreigntrade zone (FTZ). Pursuant to section 146.35, CBP allows the tem-porary unlading of merchandise in an FTZ where the information ordocumentation necessary to complete CBP Form 214 (“Application forForeign Trade Zone Admission and/or Status Designation”) is notavailable at the time the merchandise arrives within the jurisdictionof the port. As currently written, § 146.35(e) requires that CBP Form214 be submitted within five working days and allows the port direc-tor to grant an extension of this time period.

Sections 656 and 658 of the Customs Modernization Act provisionsof the North American Free Trade Agreement Implementation Act


(Public Law 103–182, 107 Stat. 2057, Dec. 8, 1993) gave the Secretaryof the Treasury the authority to prescribe the time by which CBP is tobe notified of unladen merchandise for which entry has not beenmade. On September 25, 1998, CBP published in the Federal Reg-ister (63 FR 51283), Treasury Decision (T.D.) 98–74, amending §§4.37, 122.50, and 123.10, to require a carrier’s obligated party tonotify CBP within fifteen calendar days after unlading of the pres-ence of unladen, unentered merchandise. On February 11, 1999, CBPpublished in the Federal Register (64 FR 6801) a correction to T.D.98–74 noting that it had inadvertently omitted § 146.40(c)(3) (19 CFR146.40(c)(3)) concerning the time period that merchandise be admit-ted to an FTZ after arrival into the port from within five working daysto fifteen calendar days, when it changed the regulations to reflect afifteen calendar day period for unladen merchandise to be enteredinto general order. It has now come to CBP’s attention that it alsoinadvertently omitted § 146.35(e) when it was changing the timeframe for merchandise to be admitted into a zone. This documentchanges the time required to file CBP Form 214 from five workingdays to fifteen calendar days and eliminates the port director’s dis-cretion to grant an extension to make this provision consistent withthe previous regulatory changes. Accordingly, the document amends§ 146.35(e) to be consistent with the terms of §§ 4.37, 122.50, 123.10,and 146.40(c)(3) requiring the CBP Form 214 to be filed within thesame time period.

Part 159

Section 159.11(b) of the CBP regulations (19 CFR 159.11(b)) setsforth the applicability of the provisions concerning the statutory timeframe limit of one year for the liquidation of entries but excludeddrawback entries in pending drawback claims from this time frame.However, section 1563(e) of the Miscellaneous Trade and TechnicalCorrections Act of 2004 (Public Law 108–429, 118 Stat. 2434, Dec. 3,2004) amended 19 U.S.C. 1504 to include the applicability of the oneyear deadline to the liquidation of drawback entries or claims fordrawback. Congress made this correction because it found that with-out a time limitation, CBP was not liquidating drawback claimswithin a reasonable period of time and therefore, this resulted in anopen-ended time period that a drawback claimant’s claim remainedsubject to a challenge by CBP. By including drawback claims withinthe one year statutory time frame that applies to liquidation of en-tries, Congress removed the contingent liability of the drawbackclaimant having to reimburse the U.S. Treasury of any drawbackmonies paid to the claimant from when the claim was actually filedand money was paid to the drawback claimant under the accelerated


drawback program until the claim liquidated. See Senate Report No.108–28, at 114 (Mar. 20, 2003).

Accordingly, this document amends § 159.11(b) by removing thelanguage that excluded drawback entries from falling under thestatutory liquidation time limit of one year.

Part 162

Section 162.23 of the CBP regulations (19 CFR 162.23) pertains toseizures effectuated under section 596(c), Tariff Act of 1930, asamended (19 U.S.C. 1595a(c)) (Act). The Act was amended by PublicLaw 109–177, Title III, § 311(d), 120 Stat. 192 (March 9, 2006), whichadded a new paragraph (d) that subjects merchandise exported con-trary to law, proceeds thereof, and facilitating property to seizure andforfeiture. Accordingly, this document amends § 162.23 to conformthe regulation to the Act. Section 162.23 is also being updated in thisdocument by replacing references to “Customs” with “CBP”.

Part 192

Section 192.14(d) of the CBP regulations (19 CFR 192.14(d)), whichpertains to the electronic information that is required in advance ofdeparture for outward cargo, contains an outdated reference to theexemptions from reporting requirements for export cargo located intitle 15 of the CFR. On June 2, 2008, the Bureau of the Censusannounced amendments to its regulations to implement provisions inthe Foreign Relations Authorization Act, which went into effect onSeptember 30, 2008 (see 73 FR 31548). Since the implementation ofthese amendments, the citation in § 192.14(d) of the CBP regulationsto the exemptions from reporting requirements contained in the Bu-reau of the Census’ regulations are incorrect. Accordingly, this docu-ment amends § 192.14(d) by removing the incorrect reference to 15CFR 30.50 through 30.58, which now pertain to import requirements,and adding the correct renumbered citation to the Census regula-tions, namely, 15 CFR 30.35 through 30.40.

Inapplicability of Notice and Delayed Effective Date

Because the technical corrections set forth in this document merelyconform to existing law and regulation, CBP finds that good causeexists for dispensing with notice and public procedure as unnecessaryunder 5 U.S.C. 553(b)(B). For this same reason, pursuant to 5 U.S.C.553(d)(3), CBP finds that good cause exists for dispensing with therequirement for a delayed effective date.


Regulatory Flexibility Act

Because this document is not subject to the notice and public pro-cedure requirements of 5 U.S.C. 553, it is not subject to the provisionsof the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

Executive Order 12866

These amendments do not meet the criteria for a “significant regu-latory action” as specified in Executive Order 12866.

Signing Authority

This document is limited to technical corrections of the CBP regu-lations. Accordingly, it is being signed under the authority of 19 CFR0.1(b)(1).

List of Subjects

19 CFR Part 4

Reporting and recordkeeping requirements.

19 CFR Part 10

Bonds, Customs duties and inspection, Entry, Reporting and re-cordkeeping requirements.

19 CFR Part 12

Air pollution control, Bonds, Customs duties and inspection, Meats,Pesticides, Reporting and recordkeeping requirements.

19 CFR Part 18

Bonds, Customs duties and inspection, Merchandise in transit,Reporting and recordkeeping requirements, Transportation in bond.

19 CFR Part 101

Administrative practice and procedure, Customs duties and inspec-tion, Customs ports of entry, Customs service ports, Customs man-agement centers, Harbors, Organization and functions (Governmentagencies), Reporting and recordkeeping requirements, User fee facili-ties.

19 CFR Part 103

Administrative practice and procedure, Computer technology, Con-fidential business information, Customs duties and inspection, Free-dom of information, Privacy, Reporting and recordkeeping require-ments.


19 CFR Part 118

Administrative practice and procedure, Customs duties and inspec-tion, Examination stations, Exports, Imports, Licensing, Reportingand recordkeeping requirements.

19 CFR Part 122

Administrative practice and procedure, Customs duties and inspec-tion, Penalties, Reporting and recordkeeping requirements.

19 CFR Part 141

Customs duties and inspection, Reporting and recordkeeping re-quirements.

19 CFR Part 146

Customs duties and inspections, Entry, Foreign trade zones, Im-ports, Reporting and recordkeeping requirements.

19 CFR Part 159

Customs duties and inspections, Liquidation of entries for mer-chandise.

19 CFR Part 162

Customs duties and inspection, Exports, Law enforcement, Prohib-ited merchandise, Reporting and recordkeeping requirements, Re-stricted merchandise, Seizures and forfeitures.

19 CFR Part 192

Customs duties and inspection, Exports, Reporting and recordkeep-ing requirements.

Amendments to CBP Regulations

For the reasons set forth above, parts 4, 10, 12, 18, 101, 103, 118,122, 141, 146, 159, 162, and 192 of the CBP regulations (19 CFR parts4, 10, 12, 18, 101, 103, 118, 122, 141, 146, 159, 162, and 192) areamended as set forth below.

PART 4 – VESSELS IN FOREIGN AND DOMESTIC TRADE

1. The general authority citation for part 4 and the specific au-thority citation for § 4.12, CBP regulations, continue to read as fol-lows:

Authority: 5. U.S.C. 301; 19 U.S.C. 66, 1431, 1433, 1434, 1624,2071 note; 46 U.S.C. 501, 60105.

* * * * *


Section 4.12 also issued under 19 U.S.C. 1584;

* * * * *

§ 4.12 [Amended]

2. Section 4.12 is amended by redesignating paragraph (a)(5)(a) asparagraph (a)(5).

PART 10- ARTICLES CONDITIONALLY FREE, SUBJECT TO AREDUCED RATE, ETC.

3. The general authority citation for part 10, CBP regulations, isrevised to read as follows:

Authority: 19 U.S.C. 66, 1202 (General Note 3(i), HarmonizedTariff Schedule of the United States (HTSUS)), 1321, 1481, 1484,1498, 1508, 1623, 1624, 3314.

* * * * *

§ 10.31 [Amended]

4. § 10.31(g):a. The words “Customs custody” are removed each place that

they appear and, in their place, is added the term “CBP custody”;b. The term “520(c)(1)” is removed and, in its place, is added the

term “514(a)”;c. The words “the Customs Service” are removed and, in their

place, is added the term “CBP”; andd. The words “Customs territory” is removed and, in their place,

are added the words “customs territory”.

§ 10.36 [Amended]

5. In § 10.36:a. Paragraphs (a) and (c) are amended by removing the words

“Customs invoice” each place that they appear and adding in theirplace, the term “CBP invoice”;

b. Paragraph (b) is amended by removing the number“9813.00.65” and adding, in its place, the number “9817.00.98”;

c. Paragraph (b) is further amended by removing the words,“U.S. Customs Service” and adding, in their place, the words, “U.S.Customs and Border Protection”;

d. Paragraphs (b) and (c) are amended by removing the words“Customs territory” each place that they appear, and adding, in theirplace, the words “customs territory”;

e. Paragraphs (b) and (c) are further amended by removing thewords “Customs officers” and adding, in their place, the words “CBPofficers”, and


f. Paragraphs (b) and (c) are further amended by removing thewords “through Customs” and adding, in their place, the words“through CBP”.

6. In § 10.191:a. Paragraph (b)(1) is revised by adding three new sentences at

the end of the paragraph;b. Paragraph (b)(2)(iv) is amended by removing the words “Har-

monized Tariff Schedule of the United States (HTSUS)” and adding intheir place the term “HTSUS”.

The revision reads as follows:

§ 10.191 General.

* * * * *(b) * * *

(1) * * * See General Note 7(a), Harmonized TariffSchedule of the United States (HTSUS). For purposes of thisparagraph, when the word “former” is used in conjunction withthe term “beneficiary country”, it means a country that ceases tobe designated as a beneficiary country under the CBERA be-cause the country has become a party to a free trade agreementwith the United States. See General Note 7(b)(i)(C), HTSUS.

* * * * *

§ 10.195 [Amended]

7. Section 10.195(b) is amended by removing the words “and U.S.Virgin Islands” in the paragraph heading and adding in their placethe words “, U.S. Virgin Islands, and former beneficiary countries”.

8. Section 10.195(b)(1) is amended at the end of the first sentenceby removing the words “and U.S. Virgin Islands” and adding in theirplace the words “, U.S. Virgin Islands, and any former beneficiarycountry” and in the middle of the second sentence by adding thewords “or any former beneficiary country” immediately after the word“Islands.”

§ 10.411 [Amended]

9. Section 10.411(a)(2)(vi) is amended by removing the referenceto “paragraph (e)” and adding in its place a reference to “paragraph(f)”.

§ 10.442 [Amended]

10. Section 10.442(d)(1) is amended by removing the words “ini-tiation of”.


§ 10.470 [Amended]

11. The introductory text of § 10.470(a) is amended by adding areference to “or § 10.442” immediately following the reference to “§10.410”.

§ 10.809 [Amended]

12. Section 10.809(d)(7) is amended by removing the reference to“paragraph (d)(5)” and adding in its place a reference to “paragraph(d)(6)”.

13. Section 10.809(n) is amended by removing the words “or pack-ing or repacking” and adding in their place the words “and repackingand packaging”.

§ 10.811 [Amended]

14. Section 10.811(a)(1) is amended by adding the words “oryarns” immediately after the words “all such fibers”.

PART 12 - SPECIAL CLASSES OF MERCHANDISE

15. The general authority citation for part 12, CBP regulations, isrevised to read as follows:

Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 3(i),Harmonized Tariff Schedule of the United States (HTSUS)), 1624.

* * * * *

§ 12.1 [Amended]

16. Section 12.1(a) is amended by removing the words “and cos-metics” and adding in their place the words “cosmetics, and tobaccoproducts”.

§ 12.3 [Amended]

17. Section 12.3(a) is amended by adding the words “tobacco prod-uct,” immediately after the word “cosmetic,”.

§ 12.8 [Amended]

18. In § 12.8:a. Paragraph (a) is amended by revising the first sentence to read

as follows: “All imported meat and meat-food products offered forentry into the United States are subject to the regulations prescribedby the Secretary of Agriculture under the Animal Health ProtectionAct. (7 U.S.C. 8301, et seq.).”;

b. Paragraph (a) is further amended in the third sentence byremoving the words “Such meat, meat-food products, horse meat and


horse meat food products shall” and adding, in their place, the words“Such meat and meat-food products will”; and

c. Paragraph (a) is further amended by removing the word“Customs” each time that it appears and adding, in its place, the term“CBP”.

19. In § 12.74:a. The section heading is revised.b. Paragraph (a) is revised.c. Paragraph (b)(1) is revised.d. Paragraph (b)(2) is amended by removing the words “a period

of at least 5” and adding, in their place, the words “at least five”, andby removing the word “Customs” each time that it appears andadding in its place the term “CBP”;

e. Paragraph (c)(1) is amended by removing the phrase “para-graphs (c)(3)(i) through (c)(3)(iv)” and adding, in its place, the phrase“paragraph (c)(3)”;

f. Paragraph (c)(2) is amended, in the first sentence, by removingthe phrase “paragraphs (c)(3)(i) through (c)(3)(iv)” and adding, in itsplace, the phrase “paragraph (c)(3)”, by removing the number “5” andadding in its place the word “five”, by removing the word “Customs”each time that it appears and adding in its place the term “CBP”; and,in the last sentence, by removing the terms “89.612–96(d), 90.613(c)& (d), 91.705(c) & (d)” and adding, in their place, the terms “89.612(d),90.613(c) and (d), 94.805(c) and (d), and 1068.335”;

g. Paragraph (c)(3)(i) is amended by removing the terms“89.611–96(b)(1), 90.612(b)(1), 91.704(b)(1));” and adding, in theirplace, the terms “89.611(b)(1), 90.612(b)(1), 94.804(b)(1),1068.325(a)).”;

h. Paragraph (c)(3)(ii) is amended by removing the terms“89.611–96(b)(2), 90.612(b)(2), 91.704(b)(2));” and adding, in theirplace, the terms “89.611(b)(2), 90.612(b)(2), 94.804(b)(2),1068.325(b)).”;

i. Paragraph (c)(3)(iii) is amended by removing phrase “Precerti-fication (see 40 CFR 89.611–96(b)(3), 89.06); and” and adding, in itsplace, the phrase “Display (see 40 CFR 89.611(b)(4), 90.612(b)(3),94.804(b)(4), 1068.325(c)).”;

j. Paragraph (c)(3)(iv) is amended by removing the phrase “Dis-play (see 40 CFR 89.611–96(b)(4), 90.612(b)(3), 91.704(b)(3)” and add-ing, in its place, the phrase “Precertification (see 40 CFR89.611(b)(3)).”;

k. Paragraph (d) is amended by removing the term “Customs”and adding, in its place, the term “CBP”;


l. Paragraph (e) is amended in the first sentence by adding thewords “or stationary” after the word “nonroad”, and by removing theterm “Customs” and adding, in its place, the term “CBP”, and in thesecond sentence by adding the words “or stationary” after the word“nonroad”, and by removing the word “otherwise” and adding, in itsplace, the word “other”.

Revised section heading and revised paragraphs (a) and (b)(1) readas follows:

§ 12.74 Nonroad and stationary engine compliance with Fed-eral antipollution emission requirements.

(a) Applicability of EPA regulations. The requirements governingthe importation of nonroad and stationary engines subject to con-formance with applicable emissions standards of the U.S. Environ-mental Protection Agency (EPA) are contained in EPA regulations,issued under the Clean Air Act, as amended (42 U.S.C. 7401 et seq.).These EPA regulations should be consulted for detailed informationas to the admission requirements for subject nonroad and stationaryengines. See 40 CFR part 1068, subpart D, with the following excep-tions:

(1) For nonroad compression-ignition regulated under 40 CFR part89, see 40 CFR part 89, subpart G. This applies to certain enginesthrough the 2011 model year.

(2) For nonroad spark-ignition engines at or below 19 kilowattsregulated under 40 CFR part 90, see 40 CFR part 90, subpart G. Thisapplies to certain engines through the 2011 model year.

(3) For marine compression-ignition engines regulated under 40CFR part 94, see 40 CFR part 94, subpart I. This includes propulsionengines and auxiliary engines installed on marine vessels. Thisapplies to certain engines through the 2013 model year.

(b) Admission of nonconforming nonroad engines. (1) EPA decla-ration form required. EPA Form 3520–21, “Importation of Engines,Vehicles, and Equipment Subject to Federal Air Pollution Regula-tions”, must be completed by the importer and retained on file by himbefore making a customs entry for such nonroad or stationaryengines/vehicles/equipment.

* * * * *

§ 12.112 [Amended]

20. Section 12.112(b) is amended by removing the words “Abbre-viated List of Pesticides compiled by the Environmental ProtectionAgency” and adding, in their place, the words “Index of PesticideProducts located in the Environmental Protection Agency’s handbook


entitled Recognition and Management of Pesticide Poisonings, foundat www.epa.gov”.

§ 12.123 [Amended]

21. In § 12.123:a. Paragraph (b) is amended by removing the words “Customs

form 7551, 7553, or 7595” and adding, in their place, the words “CBPForm 301, containing the conditions set forth in § 113.62 of thischapter”;

b. Paragraph (b) is further amended by removing the thirdsentence; and

c. Paragraph (b) is also amended by removing the word “Cus-toms” and adding, in its place, the term “CBP”.

PART 18- TRANSPORTATION IN BOND AND MERCHANDISEIN TRANSIT

22. The general authority citation for part 18, CBP regulations,and the specific authority for § 18.11 is revised to read as follows:

Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 3(i),Harmonized Tariff Schedule of the United States), 1551, 1552, 1553,1623, 1624.

* * * * *

Section 18.11 also issued under 19 U.S.C. 1484;

* * * * *

§ 18.11 [Amended]

23. In § 18.11:a. Paragraph (e) is amended in the first sentence by removing the

word “of” and replacing it with the word “or”; andb. Paragraph (e) is further amended in the first sentence and the

third sentence by removing the word “shall” and replacing it, in eachsentence, with the word “must”.

PART 101- GENERAL PROVISIONS

24. The general authority citation for part 101, CBP regulations,continues to read as follows:

Authority: 5 U.S.C. 301; 19 U.S.C. 2, 66, 1202 (General Note 3(i),Harmonized Tariff Schedule of the United States (HTSUS)), 1623,1624, 1646a.

Section 101.3 and 101.4 also issued under 19 U.S.C. 1 and 58b.

* * * * *


§ 101.3 [Amended]

25. In § 101.3(b)(1), the table of the list of Customs ports of entryis amended in the entry for Fargo, North Dakota, in the columnheaded “Limits of port”, by adding the numbers “09” after the phrase“CBP Dec. 03-”.

PART 103- AVAILABILITY OF INFORMATION


Authority: 5 U.S.C. 301, 552, 552a; 19 U.S.C. 66, 1624; 31 U.S.C.9701.

* * * * *

§ 103.31 [Amended]

27. In § 103.31:a. Paragraph (e)(2) is amended by removing the phrase “CBP

Data Center” each time that it appears and adding, in its place, theterm “CBP Technology Support Center”; and

b. Paragraph (e)(2) is further amended, in the last sentence, byremoving the phrase “CBP Data Center, on (703) 921–6000”, andadding, in its place, the phrase “CBP Technology Support Center at1–800–927–8729.”

PART 118- CENTRALIZED EXAMINATION STATIONS


Authority: 19 U.S.C. 66, 1499, 1623, 1624; 22 U.S.C. 401; 31U.S.C. 5317.

* * * * *

§ 118.3 [Amended]

29. In § 118.3:a. The word “six” is removed and, in its place, is added the word

“five”; andb. The word “Customs” is removed and, in its place, is added the

term “CBP”.

PART 122 – AIR COMMERCE REGULATIONS


Authority: 5 U.S.C. 301; 19 U.S.C. 58b, 66, 1431, 1433, 1436,1448, 1459, 1590, 1594, 1623, 1624, 1644, 1644a, 2071 note.


* * * * *

§ 122.42 [Amended]

31. Section 122.42(b)(2) is amended by removing the reference to“122.34” and adding in its place a reference to “122.14, 122.15,”.

PART 141 – ENTRY OF MERCHANDISE


Authority: 19 U.S.C. 66, 1448, 1484, 1624.

* * * * *

§ 141.4 [Amended]

33. The introductory text to § 141.4(c) is amended by removing thereference to “19(e)” and adding in its place a reference to “3(e)”.

§ 141.113 [Amended]

34. In § 141.113:a. Paragraph (c) is amended by removing the words “and cosmet-

ics” in the paragraph heading and adding in their place the words“cosmetics, and tobacco products”.

b. Paragraph (c)(1) is amended by removing the words “or cos-metic” in the first sentence and adding in their place the words,“cosmetic, or tobacco product”.

c. Paragraph (c)(3) is amended by removing the words “device orcosmetic” in the first sentence and adding in their place the words,“device, cosmetic, or tobacco product”.

PART 146 – FOREIGN TRADE ZONES

35. The authority citation for part 146, CBP regulations, continuesto read as follows:

Authority: 19 U.S.C. 66, 81a-81u, 1202 (General Note 3(i), Har-monized Tariff Schedule of the United States), 1623, 1624.

36. In § 146.35, paragraph (e) is revised.The revision reads as follows:

§ 146.35 Temporary deposit in a zone; incomplete documen-tation.

* * * * *

(e) Submission of CBP Form 214. A complete and accurate CBPForm 214 must be submitted, as provided in § 146.32, within 15


calendar days with no exceptions granted by the port director, or themerchandise will be placed in general order.

PART 159 – LIQUIDATION OF DUTIES


Authority: 19 U.S.C. 66, 1500, 1504, 1624.

* * * * *

§ 159.11 [Amended]

38. Section 159.11(b) is amended at the end of the paragraph byremoving the words “, but shall not apply to drawback entries”.

PART 162- INSPECTION, SEARCH, AND SEIZURE

39. The general authority citation for part 162, CBP regulations,and the specific authority for § 162.23 continue to read as follows:

Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1592, 1593a, 1624, 6 U.S.C.101, 8 U.S.C. 1324(b).

* * * * *Section 162.23 also issued under 19 U.S.C. 1595a(c).

* * * * *40. In § 162.23:

a. Paragraphs (c) and (e) are amended by removing the word“Customs” and adding, in its place, the term “CBP”; and

b. A new paragraph (f) is added.The addition reads as follows:

§ 162.23 Seizure under section 596(c), Tariff Act of 1930, asamended (19 U.S.C. 1595a(c)).

* * * * *(f) Exportations contrary to law. Merchandise exported or sent, or

attempted to be exported or sent, from the United States contrary tolaw, or the proceeds or value thereof, and property used to facilitatethe exporting or sending, or attempted exporting or sending, of suchmerchandise, will be seized and subject to forfeiture. In addition, thereceipt, purchase, transportation, concealment or sale of such mer-chandise prior to exportation will result in its seizure and forfeitureto the United States.


PART 192- EXPORT CONTROL


Authority: 19 U.S.C. 66, 1624, 1646c. Subpart A also issued under19 U.S.C. 1627a, 1646a, 1646b; subpart B also issued under 13U.S.C. 303; 19 U.S.C. 2071 note; 46 U.S.C. 91.

* * * * *

§ 192.14 [Amended]

42. In § 192.4:a. Paragraph (d) is amended by removing the phrase “§§30.50

through 30.58” and replacing it with the phrase “§§30.35 through30.40”; and

b. Paragraph (d) is further amended by removing the phrase “(15CFR 30.50 through 30.58)” and replacing it with the phrase “(15 CFR30.35 through 30.40)”.Dated: August 23, 2010

ALAN BERSIN




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